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On the Ethics of Exporting Ethics: the Right to Silence in Japan and the US

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On the Ethics of Exporting Ethics: the Right to Silence in Japan and the US John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series On the Ethics of Exporting Ethics: The Right to Silence in Japan and the U.S. Kenneth Winston June 2003 RWP03-027 The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. All works posted here are owned and copyrighted by the author(s). Papers may be downloaded for personal use only. ON THE ETHICS OF EXPORTING ETHICS: The Right to Silence in Japan and the U.S. Kenneth Winston Kennedy School of Government In The Question of Hu, Jonathan Spence tells the story of a French missionary in China in the eighteenth century, who set out to prove that certain ancient Chinese documents confirmed his idiosyncratic Christian theory of world history.1 It is the story of a foreigner’s shabby and insensitive treatment of the Chinese people encountered in his spiritual quest, and equally of a European unable to reflect on the limitations of his own intellectual cocoon. The missionary failed to exercise two types of reflection—what I shall refer to as double reflection. He failed to discern what something could mean to the Chinese, especially when at variance with his own understanding, and he was unable to contemplate the contestability of his own worldview. These are difficult abilities to cultivate, and most of us fail to some degree. Yet they are indispensable in a world of increasing communication and interdependence across cultures. When people from different ethical traditions confront one another in a practical context, what may we reasonably expect? We are most familiar with encounters in which effective control lies with one or the other party, such as the imposition of values by a dominant power or the appropriation of values by a professional elite. Neither of these involves mutual deliberation. Is deliberation across ethical traditions possible? Since the majority of my students at the Kennedy School of Government are international—with a large group drawn from Confucian countries— the question amounts to asking whether it is possible for me to engage in reasoned disputation with my students, assessing the truth of moral claims, the pros and cons of alternative views. One of the ground rules in my ethics class is that no one is permitted to say simply “This is how we do things in my country.” But to what extent do we—can we—succeed in justifying our conduct to one another? If we do not reach agreement on specific principles, can we at least converge on a framework for the identification of acceptable principles? In this essay, I propose to examine a rule or practice in an “alien” culture quite antithetical to the comparable U.S. rule or practice, and show that a compelling case can be made for it—compelling, that is, to us. By compelling, I mean that, even if we cannot imagine living by it ourselves, we should be able to appreciate its moral force, understanding it as an alternative mode of human flourishing. The comparison itself could constitute (or elicit) a critique of our own practice, but that is not crucial. What matters is not whether we approve of the alien practice but whether we find it morally coherent or intelligible—itself a moral judgment but less demanding than approval. Undergirding this enterprise is a wariness about dividing the world into distinct, unitary, enclosed moral spaces. That view imagines moral traditions to be like exclusive social clubs, in which everyone is a member of one or another. Each club has its own rules and its own standards of interpretation and justification—internal to itself and inaccessible to other clubs. Central concepts illuminate the meaning of morality to those within the club’s boundaries but are opaque to those outside. Alasdair MacIntyre, for example, claims that the features of the moral life salient to a Confucian are “necessarily invisible” to an Aristotelian, and vice versa. 2 Yet he concedes that traditions develop over time, so that what could not be said or grasped at one temporal stage becomes available at a later stage. Then the possibility of genuine engagement depends on which stage one is in. Instead of the social club metaphor, I prefer to regard moral 2 traditions like schools—learning environments, each of which makes available the resources for moral understanding and criticism, including self-criticism. (I take moral conformity itself to be a reflective practice that generates criteria for its own assessment.) This alternative picture envisions the possibility of a common educational experience across societies; the important questions then are about pedagogy. One learning strategy, for example, begins with the observation that traditions are carried on at different levels of abstraction; people who share a tradition at one level may diverge at another. The divergence provides a standpoint for examining what is shared, and vice versa. And similarly across traditions. Of course, confidence in this strategy is deeply antagonistic to the postmodern teaching that the only resources available to us are competing discourses with different, often incompatible, constructions of the moral world, without any reliable method for mediating between them. Postmodernists place themselves in enclosed, usually ethnocentric spaces and then express wonder at their imprisonment. I am ready to begin with particular societies and human beings in all their motivational and normative diversity, but that is only a starting point, and one with rich reserves for critical reflection. Just as we need not believe that moral reasoning requires an Archimedean point outside all social practices, so we need not believe it is inescapably constricted by specific linguistic or cultural categories. It is not just that there is no “outside,” and no need for one, but no “inside” either—let alone an inside one can never get out of. One embarks at some local place and then advances, with caution, to more comprehensive understandings. In the process, contingency may infect our thinking and set obstacles to our grasp of things, but there are no limits in principle to inclusiveness and generality. Further, the stimulants to reflection are familiar, including the growth of knowledge and awareness of alternative norms from cross-cultural studies. Let us assume that, in 3 deliberation, we each have a different, perhaps idiosyncratic, starting point, like the French missionary in Jonathan Spence’s story. We also have the capacity to reflect and follow lines of reasoning and make new discoveries, about ourselves as well as others. (Interestingly, as the lives of others become morally intelligible, our own may become somewhat opaque.) The result is that we enlarge our understanding—although success in this endeavor may require the adoption of a more encompassing idiom. In this way, double reflection avoids the pathologies of relativism and perspectivalism. What I bring to this project is neither the deep immersion of an area specialist nor a social scientist’s techniques for empirical generalization but the resources, such as they are, of a practical ethicist. These resources are perhaps too meager for the analysis I propose to undertake here, but I stress that my ambitions are limited. This essay is very much a personal, no doubt quirky attempt to come to grips with the challenges of cross-cultural ethical dialogue. My approach is to use available scholarly sources to offer an interpretive account of Japanese practice, reflecting my conviction that many social phenomena are unintelligible, descriptively as well as normatively, unless characterized in terms of their aspirations or guiding ideals.3 Of course I could not pursue this project if area specialists did not pursue theirs; practical ethics operates at a meta-level and depends on good scholarship at the ground level. This essay is meant to be exploratory, clarifying, and suggestive, rather than definitive; I invite dispute and correction. My aim is to illustrate double reflection and draw some conclusions about exporting ethics across cultures. The rule I have selected for examination is a specific, well-entrenched constitutional right of criminal defendants—commonly referred to as the privilege against self-incrimination but more generally called the right to silence—and my starting point is the attempt by U.S. 4 occupation forces to transplant this right in Japan at the end of World War II. The story of the constitutional right to silence in Japan is in part about the feasibility but more about the ethics of ethics export in the absence of double reflection. I. The right to silence in Japan During the occupation of Japan at the end of World War II, the U.S. engaged in deliberate institutional design on a grand scale. The general aim was to transform an autocratic political system into a functioning democracy, as we understood it. The principal strategy consisted in taking a distinctive parliamentary system and setting it within a constitutional structure, with a bill of rights and a supreme court. As part of this plan, the U.S. attempted to transplant the core components of an adversarial system of criminal justice, including the right to silence for suspects. Occupation forces regarded the traditional Japanese emphasis on confessions in criminal cases, including the extralegal use of torture to obtain them, as necessitating reform. The right to silence was made explicit in the new constitution (Article 38) and was supported by provisions in the Code of Criminal Procedure of 1948. However, written law and living law do not always coincide.4 Observers agree that while physical abuse by the police diminished considerably, the new legal structure failed to establish a meaningful right to silence or to change Japanese attitudes regarding the importance of confession.
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